Customs, Excise and Gold Tribunal - Tamil Nadu
Steel Authority Of India Ltd. vs Cce on 22 September, 2004
Equivalent citations: 2004(117)ECR434(TRI.-CHENNAI), 2004(177)ELT1128(TRI-CHENNAI)
ORDER P.G. Chacko, Member (J)
1. The appellants, M/s. Steel Authority of India (for short, SAIL] had been awarded a contract by Government of India, Department of Economic Affairs for supply of 5250 MTS of Stainless Steel Coin Blanks [for short, "coin blanks"] for the Government's Mint. A part of this quantity was procured from abroad and supplied by SAIL while the balance quantity (2640 MTs) was supplied indigenously from their factory viz. Salem Steel Plant. The dispute in the instant case is in relation to a refund claim filed by SAIL in respect of the coin blanks supplied by Salem Steel Plant to the Government Mint during the period 1.1.1994 to 12.10.1994. The clearance of the goods was on payment of excise duty at applicable rate. While so, Govt. of India granted ad-hoc exemption from payment of duty on 2570 MTs of coin blanks supplied to them by the Steel Plant vide Order No. 11.11.1994-CX dated 21.9.1994 issued under Sub-Section 2 of Section 5A of the Central Excise Act. The ad-hoc exemption was valid upto 30.6.1995. On 17.11.1994, the Steel Plant of SAIL preferred a claim for refund of duty of Rs. 3,27,41,476/- to the proper officer of Central Excise in respect of the coin blanks supplied for the period 1.1.1994 to 12.10.1994. In a show-cause notice dated 3.4.1995, the Assistant Commissioner proposed to reject as time-barred a part of this claim, to the extent of Rs. 1,17,94,674/- relating to the period 1.1.1994 to 17.5.1994. This proposal was resisted by the Steel Plant in their reply to the show-cause notice, contending that, as the refund claim was filed promptly after receiving the ad-hoc exemption order of the Government and the intention of the Govt., obviously, was to exempt coin blanks from payment of duty, it was not proper to reject any part of the claim as time-bared. The Assistant Commissioner, in adjudication of the dispute, rejected the refund claim as time-barred (under Section 11B of the Central Excise Act) to the extent of Rs. 1,17,94,645/- for the period 1.1.1994 to 17.5.1994 and sanctioned refund of Rs. 51,49,421/- for the subsequent period [18.5.1994 to 12.10.1994] after adjusting the credit of duty taken on the inputs (stainless steel strips) consumed in the manufacture of coin blanks cleared during the said period [18.5.1994 to 12.10.1994]. It appears Govt. of India had, meanwhile, issued order dated 30.6.1995 amending the above ad-hoc exemption order to the extent of making the latter order applicable to the entire clearance of 2640 MTs of coin blanks for the period 1st January 1994 to 31st July 1995, but the amending order was not placed before the adjudicating authority. Against the order of adjudication, Salem Steel Plant preferred an appeal to the Commissioner (Appeals) but it did not succeed. Hence the present appeal.
2. Heard both sides, Ld. Counsel for the appellants submitted that they had no advance information about the ad-hoc exemption order issued by Central Govt. The exemption order was received by them on 17.10.1994 and the refund claim was promptly filed on 17.11.1994. In the circumstances, it was not correct to enforce the limitation provisions of Section 11B in this case. At best, the period of limitation prescribed under Section 11B, in this case, should be reckoned only from 17.10.1994 date of receipt of the ad-hoc exemption order instead of the date of payment of duty. Counsel pointed out that, in the case of Food Corporation of India v. Collector of Customs this Tribunal had held that an ad-hoc exemption order issued under Section 25(2) of the Customs Act in respect of goods already cleared on payment of duty could have retrospective effect and result in refund of duty. It was pointed out that Section 25(2) of the Customs Act was pan materia with Section 5A(2) of the Central Excise Act. Reliance was also placed on the decision of the Tribunal (Single Member) in Bharat Fritz Werner (P) Ltd. v. CCB wherein a refund claim dated 26.6.1979 for duty paid during 25.5.1978 - 8.11.1978 was held not time-barred under Rule 11 of the Central Excise Rules 1944 and was allowed by giving retrospective effect to the Government's special exemption order dated 17.1.1979 issued under Rule 8(2) of the said Rules. It was pointed out by counsel that the ratio of the decision in Food Corporation of India case was followed by the learned Single Member in the Bharat Friz Warner (P) Ltd. case Ld. Counsel also relied on the Tribunal's decision in Aeronautical Development Agency v. Commissioner of Customs wherein a claim made on 17.2.1995 for refund of Customs duty paid on goods imported in 1993, on the basis of an ad-hoc exemption order issued by Government under Section 25(2) of the Customs Act on 10.1.1995 was held not time-barred and was accordingly allowed.
3. Ld. Counsel submitted that, in the facts of this case, it was impossible to apply for refund within six months from the date of payment of duty as the ad-hoc exemption order was issued by Government providing cause of action for refund after six months from the said date. In such exceptional circumstances, it was permissible to by-pass the limitation provisions of Section 11B. To buttress this point, ld. Counsel quoted from "A SELECTION OF LEGAL MAXIMS" (By Herbert Broom) and argued thus: "Where the law creates a duty or charge, and the party is disabled to perform it, without any default in him, and has no remedy over, there the law will in general excuse him". In the instant case, the retrospective exemption in respect of the coin blanks supplied from January 1994 was granted only on 30.6.1995, more than six months after the payment of duty on the goods cleared from 1.1.1994 to 17.5.1994. It was only on 17.10.1994 that they received the original exemption order which had no retrospective application. Before that date, they were not aware of any exemption for the coin blanks. Hence it was impossible for them to claim refund of the duty paid on the past clearances of coin blanks. Counsel argued that this impossibility of performance was a good excuse against the department's plea of time-bar. According to the counsel, it was incumbent on the authorities to give effect to the retrospective exemption for the clearances in question, by refunding the duty already paid. He relied on the Apex Court's decision in Belapur Sugar & Allied Industries Ltd. v. CCE .
4. Ld. SDR vehemently argued in defence of the door of the Commissioner (Appeals). She submitted that the Assistant Commissioner and the Commissioner (Appeals), being authorities functioning under the Central Excise Act, were bound by the limitation provisions of Section 11B of the Act, which at the material time had stipulated that any claim for refund of duty should be filed within six months from the relevant date which, in the case on hand, was the date of payment of duty. In the present case, admittedly, duty of excise amounting to Rs. 1,17,94,645/- on coin blanks supplied by the appellants to the Govt. Mint from 1.1.1994 to 17.5.1994 had been paid beyond six months preceding the date of filing of the refund claim and, therefore, the claim for refund of such duty was clearly time-barred under Section 11B. There was no provision in the Central Excise Act which had overriding effect to get over this limitation, nor could any legal maxim be held to have such effect. Ld. SDR argued that, in all situations, claims for refund of duty of excise were subject to the limitation prescribed under Section 11B of the Central Excise Act. In this connection, reliance was placed on the Supreme Court's judgements in CCE, Chandigarh v. Doaba Co-Operative Sugar Mills and Miles India Ltd. v. Assistant Collector of Customs 1987 (30) ELT 641 (SC). Ld. SDR also relied on the following decisions of the Tribunal:
a. CCE v. Kashmir Conductors b. A. Infrastructure Ltd. v. CCE c. Shakti Beverages Ltd. v. CC It was also pointed out by ld. SDR that the time limit for a refund claim based on an ad-hoc exemption order of Central Govt. under the Customs Act was held to be computable from the date of payment of duty and not from the date of the ad-hoc exemption order, in the case of Ion Exchange (I) Ltd. v. CC . Reliance was also placed on Tribunal's decision in K. Viswanathan v. CC , which was relied on in Ion Exchange (supra). It was, further, argued that any retrospectively of such exemption orders was subject to the time-bar prescribed under the Act. In this connection, ld. SDR sought to draw support from the Supreme Court's judgment in J.K. Spinning and Weaving Mills Ltd. and Anr. v. Union of India and Ors. .
5. After the hearing in the case was concluded, the Registry received a request from the appellants for placing before us the Calcutta High Court's decision in Assistant Collector of Central Excise, Calcutta v. Bata Shoe Co. (P) Ltd. for consideration in the case. Regarding this, the SDR was put to notice, whereupon Id. SDR filed written submissions to the effect that the ratio of the above decision was not applicable to the instant case. Ld. SDR sought to distinguish the two cases in the following manner:
_____________________________________________________________________________ BATA SHOE CASE APPELLANTS CASE _____________________________________________________________________________ Duty was collected on an item Duty was paid on coin blanks that was not covered under any which were classified under sub-
excisable tariff at that particular heading 7326.90 of the schedule time. In other words the duty to the Central Excise Tariff Act, collected was without the 1985 and chargeable to duty of authority of law. 15% Adv.
______________________________________________________________________________ The Refund claim was initially The refund claim was rejected rejected on "a misconceived solely on the ground of time bar.
impression that while The relevant date being the date of considering the refund payment of duty as held by the application the date of the Larger Bench of the Tribunal in he Board's clarification (26/9/63) case of Kashmir Conductors should be the cut off date". The reported in 1997 (96) ELT 257. time bar issue was not considered, (para 20 of the High Court Order)
______________________________________________________________________________ The duty was paid under protest The Appellant did not pay the even though there was no duty under protest nor was there provision under the law to make any request for provisional payments under protest at that assessment despite statutory time. provisions being available for the same.
_______________________________________________________________________________
6. We have carefully considered the submissions and case law. The ad-hoc exemption order dated 21.9.1994 was issued by Central Govt. under Sub-section 2 of Section 5A of the Central Excise Act, which provisions reads as under:
(2) If the Central Government is satisfied that it is necessary in the public interest so to do, it may, by special order in each case, exempt from the payment of duty of excise, under circumstances of an exceptional nature to be stated in such order, any excisable goods on which duty of excise is leviable.
The above exemption order of the Government exempted 2570 MTs of coin blanks manufactured and supplied by the appellants to the Mint under the Department of Economic Affairs, Govt. of India, from the whole of the duty of excise leviable thereon. It also stated that the exemption would be valid up to 30.6.1995. The preamble to the operative part of the exemption order stated the purpose, of the exemption. The relevant part of the preamble reads thus:
To keep the overall value of coins within their face value, Department of Economic Affairs has requested for exemption from payment of excise duty on the indigenously manufactured stainless steel coin blanks.
The Government, by an order dated 30.6.1995 issued to the Commissioner of Central Excise, Coimbatore, amended the above exemption order by adding the following paragraph to it:
This ad-hoc exemption order is applicable to the entire quantity of 2640 MTs of stainless steel coin blanks supplied to the Govt. of India by M/s. Salem Steel Plant and therefore applicable to the clearances already made from January, 1994 onwards until 31.7.1995.
The amending order also extended the period of validity of the ad-hoc exemption up to 31.7.1995. The appellants had paid duty on the coin blanks cleared to the Mint under the Ministry of Economic Affairs from 1.1.1994 to 12.10.1994. They claimed refund of the entire duty on the strength of the above ad-hoc exemption. The authorities below have rejected the claim of refund for the period 1.1.1994 to 17.5.1994 as time-barred under Section 11B of the Central Excise Act, after finding that the claim for the said period is beyond six months (prescribed under Section 11B) from the date of payment of duty. As regards the claim for refund of the duty paid for the period 18.5.1994 to 12.10.1994, the same has been sanctioned by the amount of Modvat credit availed on the inputs used in the manufacture of coin blanks during the said period has been recovered by adjustment against the refund so sanctioned. The appellants have challenged this recovery as well. However, it has been conceded at the bar that this dispute pertaining to Modvat credit has already been settled in SAIL v. CCE, Coimbatore .
7. Nobody has argued that Section 11B is totally inapplicable to the refund claim in question as the claim was filed under this provision only. However, it has been argued by Id. Counsel for the appellants that the limitation provisions of Section 11B cannot be applied to the refund claim inasmuch as it was impossible for them to prefer such claim at any time prior to the date of issue of ad-hoc exemption order. In this context, Id. Counsel has relied on the maxim "impotentia excusat legem" meaning "where the law creates a duty or charge, and the party is disabled to perform it, without any default in him, and has no remedy over, where the law will in general excuse him". Counsel has also cited the maxim: "lex non cogit ad impossibilia" meaning "the law does not compel a man to do that which he cannot possibly perform". The counsel's point is that impossibility of performance, in the instant case, is a valid excuse against application of the time-bar provisions of Section 11B. As, in respect of duty paid on coin blanks during 1.1.1994 to 17.5.1994, it was impossible to present refund claim within six months from the date of payment, the subject claim filed beyond this period of limitation under Section 11B should not be rejected as time-barred. We are unable to accept his argument. In our view, what is embodied in the cited maxims is a rule of equity which cannot be invoked to get over a statutory limitation, by a party who had alternative means in law to get over such limitation but neglected to take to such means. It was very much possible for the appellants to lawfully get over the bar of limitation under Section 11B by making the duty payments either under protest or under provisional assessments. Having failed to do so, they cannot claim equity. Equitable considerations are irrelevant to the law of limitation as observed in Kashmir Conductors (supra).
8. Under Section 11B of the Central Excise Act, as this provision stood at the material time, a refund should have been filed within a period of six months from the "relevant date". Relevant date was defined under the Explanation to the Section.
This definition reads as under:
(B) "relevant date" means,-
(a) in the case of goods exported out of India....
(b) in the case of goods returned for being remade....
(c) in the case of goods to which banderols are required to be affixed....
(d) in a case where a manufacturer is required to pay a sum, for a certain period, on the basis of the rate fixed by the Central Government by notification....
(e) in the case of a person, other than the manufacturer....
(f) in any other case, the date of payment of duty.
[Emphasis added] Clause (f) above was applicable to refund claims like the subject claim prior to 28.9.1996. From this date, the applicable provision is Clause (ea) which was inserted with effect from 28.9.1996 under Section 77 of the Finance (No. 2) Act, 1996. This new Clause (ea) reads as under:
(ea) in the case of goods which are exempt from payment of duty by a special order issued under Sub-section (2) of Section 5A, the date of issue of such order;
We notice that, through enactment of the above provision, Parliament virtually declared that the time-bar provisions of Section 11B were applicable to claims for refund of duty based on special exemption order issued under Section 5A(2). Further, Parliament expressly recognized a special order issued under Section 5A(2) as cause of action for refund of duty already paid on the goods specified in such order, subject to the bar of limitation under Section 11B as amended under Section 77 of the above Finance Act. Even for a period prior to 28.9.1996, during which Clause (ea) was not in force, a special order issued under Section 5A(2) could be treated as cause of action for refund of duty subject to the bar of limitation under Section 11B as this provision stood prior to the amendment. The special order in the instant case was issued on 21.9.1994. This order was amended subsequently by Government vide letter dated 30.6.1995 extending the benefit of exemption retrospectively up to 1.1.1994. Even if the amendment is treated as dating back to 21.9.1994, the date of issue of special order remains 21.9.1994, the date of issue of special order remains 21.9.1994 for all purposes of Section 5A(2). The date of issue of special order i.e., the date of accrual of cause of action became "relevant date" for refund purpose with effect from 28.9.1996 only, Clause (ea) ibid having no retrospective effect, prior to 28.9.1996, the "relevant date" was the date of payment of duty vide Clause (f) ibid and not the date of accrual of cause of action. [Note that, in Kashmir Conductors (supra), it was held by the Larger Bench, for period prior to 28.9.1996, that the date of accrual of cause of action was irrelevant for refund claim under Section 11B. In the instant case, the claim for refund of duty for the period 1.1.1994 to 17.5.1994 was, admittedly, filed beyond six months from the date of payment of duty and, therefore, the claim was time-barred under Section 11B.
9. As the payment of duty was not under protest, the above time-bar is applicable with all its rigour in this case. It was stated by Id. Counsel that the appellants would have paid the duty under protest, had they been aware of the ad-hoc exemption. For us, it is difficult to believe that they were not aware of the move for obtaining such exemption from Government. Of course, it was the Department of Economic Affairs that requested for the exemption in respect of coin blanks vide preamble to ad-hoc exemption order dated 21.9.1994. Under the relevant contract, SAIL's Steel Plant and to supply the coin blanks to the Mint under the Department of Economic Affairs. SAIL and the Department of Economic Affairs being contracting parties and SAIL being the beneficiary of any exemption from payment of duty on the coin blanks, the request made by the Department of Economic Affairs for ad-hoc exemption must have been, atleast, known to SAIL. The appellants can hardly justify their plea of ignorance about the move for ad-hoc exemption in respect of the coin blanks manufactured and supplied by them. In the above circumstances, it has to be inferred that the appellants were aware of the above move, but yet they did not protest while paying duty on the coin blanks for a prospective refund. In any case, the undisputed fact is that their payment of duty was not under protest and therefore they were not 'excused' by the law of limitation.
10. The strict application of the limitation provisions of fiscal statutes has already been upheld by the Apex Court. We are unable to follow the view taken by the Tribunal in the cases of Food Corporation (supra), Bharat Fritz (supra) and Aeronautical Development Agency (supra) inasmuch as it has been held by the Supreme Court that Central Excise/Customs authorities are bound by the provisions of limitation. It was so held by the Apex Court in the case of Doaba Cooperative Sugar Mills (supra). The Apex Court held thus:
...in making claims for refund before the departmental authority, an assessee is bound within four corners of the statute and the period of limitation prescribed in the Central Excise Act and the Rules framed thereunder must be adhered to. The authorities functioning under the Act are bound by the provisions of the Act. If the proceedings are taken under the Act by the department, the provisions of limitation, prescribed in the Act will prevail.
A similar view was taken by the Supreme Court in respect of the period of limitation prescribed under Section 27 of the Customs Act vide Miles India Ltd. (supra). These decisions of the Apex Court were followed by a Larger Bench of this Tribunal in Shakti Beverages (supra) to hold that a proceeding for finalizations of provisional assessment was not liable to be quashed on the ground of delay as no period of limitation had been prescribed for it under the Customs Act. In the case of A. Infrastructure Ltd. (supra), another Larger Bench of this Tribunal held that an application for refund of excise duty under all circumstances and in all cases must be filed by the assessee within the period of limitation prescribed under Section 11B of the Central Excise Act. In the case of Kashmir Conductors (supra), another Larger Bench held that the time limit for a refund claim filed on the basis of exemption notification was to be computed from the date of payment of duty. The Larger Bench, in Kashmir Conductors (supra), relied on a ruling of the Apex Court rendered in the case of Suraj-ul-Haq Khan and Ors. v. Sunni Central Board of Waqf , wherein the Court had held that "it is true that rules of limitation are to some extent arbitrary and may frequently lead to hardship; but there can be no doubt that, in construing provisions of limitation, equitable considerations are immaterial and irrelevant and in applying them effect must be given to the strict grammatical meaning of the words used by them". We find that this law laid down by the Apex Court four decades ago has been consistently applied by the court vide, for instance, Doaba Co-Operative Sugar Mills (supra). It is the same rule of construction that has been followed by the Tribunal's Larger Benches in the aforesaid cases. This rule has to be followed in the instant case too. The rejected claim of refund in this case relates to a period prior to 28.9.1996 and, therefore, in respect of such claim, the relevant date is the date of payment of duty in terms of Clause (f) of the Explanation to Section 11B. This provision was binding on the Revenue authorities and, therefore, they rightly rejected the refund claim, which was beyond the period of six months from the date of payment of duty.
11. Ld. Counsel has relied on the Supreme Court's judgment in the case of Belapur Sugar & Allied Industries (supra) wherein it was held: "Even if duty is paid under ignorance of law or otherwise, if by subsequent legislation or valid Notifications the obligation to pay the duty is withdrawn, it cannot be refused since he has already paid the duty. If duty paid is shown to be not leviable or entitled for rebate the revenue has to refund, adjust, credit such amount to the assessee, as the case may be". We observe, that, in that case, their lordships were, apparently, not required to examine the scope of the limitation provisions of Section 11B. However, the above ruling seems to be in conflict with the Apex Court's earlier ruling of strict application of limitation in Doaba Co-operative Sugar Mills case (supra). But it is noted that a 3 - Judges Bench of the Supreme Court has subsequently followed the view taken in Doaba Cooperative Sugar Mills vide Asst. Collector of Central Excise v. Kashyap Engg. & Metallurgicals Put. Ltd. 2002 (142) ELT 512 (SC). Thus we have got to follow the rule of strict applications of the law of limitation underlined in the Doaba and similar cases.
12. The appellants have relied on a recent decision of the Calcutta High Court in the case of Bata Shoe Co. (P) Ltd. (supra). Cotton fabrics, covered by the tariff item "friction cloth", was a raw material for the manufacture of shoes. Duty of excise was not leviable on it prior to 1.8.1960. A Notification dated 1.8.1960 issued by the department introduced levy on the item. Bata Shoe Co. started making payments of duty from the said date under protest. While so, they represented to Govt. of India, Ministry of Finance for exemption from payment of duty on the fabrics and ultimately, on 26.9.1963, the Central Board of Revenue informed them that no duty was payable on friction cloth. On the basis of the Board's letter dated 26.9.1963, the shoe company applied for refund of the duty paid on the fabric from 24.4.1962 to 17.6.1966. The original authority rejected the claim for refund of the duty paid for the period prior to 26.9.1963 and allowed refund for the subsequent period. The rejection of the refund claim for the period prior to 26.9.1963 was challenged by the company and, ultimately, the dispute reached the High Court. The question considered by the court was whether the claim for the period prior to 26.9.1963 was barred by limitation under Rule 11 of the Central Excise Rules 1944. The High Court found that the Board's letter dated 26.9.1963 was in the nature of clarification of the prevailing law on the point and that the payment of duty by the assessee for the aforesaid period was not occasioned by their mistake or misconception. On the other hand, the Court held, the payment of duty was of a purely compulsive mode of recovery by the Revenue on the basis of misconception of the Revenue authorities, which was clarified by the Board in the aforesaid letter. On this basis, it was held that the limitation provisions of Rule 11 ibid has no application to the refund claim. According to the present appellants, the ratio of the High Court's decision is in support of their plea that the limitation provisions of Section 11B are not applicable to the refund claim in question. The Revenue, through Id. SDR, has rebutted this argument by correctly distinguishing the instant case from the Bata Shoe Company case. We also do not find any parallel between the two cases. In the Bata Shoe Company's case, the payment of duty was under protest right from the beginning, whereas in the instant case the duty was not paid under protest. Again, in the Bata Shoe Company's case, the Board's letter was held to be a clarification of the prevailing law, whereas in the instant case the ad-hoc exemption order issued by the Central Government under Section 5A(2) of the Central Excise Act operated in an entirely different way. The exemption order granted exemption from payment of duty in respect of coin blanks, which were otherwise exigible to duty of excise under the Central Excise Tariff. Further, in the Bata Shoe Company's case, as observed by the High Court, the department authorities themselves had accepted the fact Rule 11 of the Central Excise Rules was not applicable to the refund claim in that case. In the instant case, it has ever been the case of the Revenue that the appellant's claim for refund of duty paid during 1.1.1994 to 17.5.1994 is time-barred under Section 11B. The Revenue has never disengaged Section 11B. In the circumstances, the appellants get no aid from the High Court's judgment in the Bata Shoe Company case which has been correctly distinguished by Id. SDR. On the other hand, Ion Exchange (supra) relied on by the SDR firmly supports the Revenue's case. A claim for refund of customs duty, filed by the assessee on the basis of an ad-hoc exemption order, was the subject matter of that case. It was argued by the assessee that the cause of action for the claim of refund had arisen only after the ad-hoc exemption order was issued and hence the time limit for the claim was to be computed from the date of issue of the exemption order. The Tribunal found that there was no provision in the Customs Act for computing the time limit as suggested by the assessee and, accordingly, rejection of the refund claim was upheld. That was a claim for a period prior to 28.9.1996. For reasons which we have already noted, the above view taken by the Tribunal in Ion Exchange (supra) must be followed in this case. We also note that the above view was followed by the Tribunal in the case of K. Viswanathan (supra) also.
13. It was argued by Id. Counsel that, if the ad-hoc exemption order of the Central Govt. covering the goods already cleared on payment of duty was not given effect to, the assessee would be put to hardships which was not intended by the Govt. This argument was opposed by Id. SDR by relying on the Supreme Court's decision in J.K. Spinning and Weaving Mills Ltd. And Anr. v. Union of India And Ors. . She has referred to paragraphs 30 & 33 of the Apex Court's judgement. In the cited case, certain amendments to Rules 9 & 49 of the Central Excise Rules 1944 were considered by the court. Those amendments had been made with retrospective effect, which could become a potential weapon for the Revenue to raise demands of duty for past period up to 28.2.1944. It was argued by the assessee that, if the department reopened the past assessments for raising such demands, it would be harsh for them. This apprehension was rejected by their Lordships who observed that any such demand would be subject to the time-bar provisions of Section 11A of the Act. Ld. SDR has argued that, just as a retrospective demand of duty is subject to limitation under Section 11A, a refund claim based on retrospective exemption should be subject to time-bar under Section 11B. We appreciate this argument and observe that J.K. Spinning & Weaving Mills (supra) is yet another assertion, by the Apex Court, of the rule of strict construction and application of limitation provisions.
14. We have made a mention or the Modvat credit issue raised in this case. This issue has already been settled by this Bench as per Final Order No. 1701/01 dated 28.9.2001 in Appeal No. E/1896/1997-Md. Steel Authority of India v. Commissioner of Central Excise, Coimbatore, whereby denial of Modvat credit to the extent of Rs. 85,91,276/- to the appellants was affirmed and the demand raised in the corrigendum issued by the authorities was set aside.
15. In the result, the rejection of refund claim for the period 1.1.1994 to 17.5.1994 as time-barred and the sanction of refund for the period 18.5.1994 to 12.10.1994 are upheld. Any recovery of duty by way of adjustment against the refund so sanctioned shall be in terms of Final Order No. 1701/01 ibid. Subject to this modification, the impugned order is affirmed and the appeal is rejected.
(Pronounced in Open Court on 22.9.2004)